September 18, 2002

Why Oppose McConnell- It's the Economy Stupid

The next judicial nomination fight is over Michael McConnell, a law professor from the University of Utah. Well respected by even his more liberal academic colleagues, many of whom have endorsed his nomination as conservatives have trumpted, citing opinions like U of Texas Doug Blaylock. I've read his work and can attest to his intelligence. And to his political extremism.

Now, the big focus on McConnell has been on his criticism of the separation of church and state and his staunchly pro-life positions. True enough and on abortion alone, just as Bush picked him because he was pro-life, Democrats should feel free to reject him.

But lost in that controversy are McConnell's economic views. He hasn't written about it much in recent years, but back in 1988 he wrote a piece called CONTRACT RIGHTS AND PROPERTY RIGHTS: A CASE STUDY IN THE RELATIONSHIP BETWEEN INDIVIDUAL LIBERTIES AND CONSTITUTIONAL STRUCTURE.

While not as extreme as some of his absolutist "property rights" brethren, beneath McConnell's erudite and quite interesting historical analysis of the contracts clause is a rejection of core New Deal jurisprudence that ended use of the "contracts clause" as a restriction on state government regulations of the economy. As he writes:

The reason the states, rather than the federal government, were thought in need of this form of restraint is that state governments are especially susceptible to control by self-aggrandizing political factions. This perspective suggests particular vigilance against laws altering private contractual arrangements...the analysis casts doubt on the Court's willingness to allow states to impair the obligation of contracts merely on the showing that it is plausibly 'necessary for the general good of the public.' [citing for criticism the example of the core 1934 Blaisdell case] The Framers well understood that there would be times when laws violating contractual rights would seem 'proper, & essential' and that the restraint imposed by the Constitution would cause 'inconveniences.' Their solution was to allow such laws to be enacted only at the federal level.

This position is far more extreme than McConnell's position on abortion, since even if Roe was overturned, states would be free to democratically protect abortion rights. But McConnell advocates a return to rightwing judicial activism to block any state regulation viewed by judges as "impairing" contract rights.

That he might allow similar regulations at the federal level just adds to the ongoing category of conservative federalist hypocrisy, but the practical results would be to kill many of the state regulatory experiments that usually lead to federal action.

McConnell is a radical danger to consumer, environmental and labor rights and promises a return to a pre-New Deal era when state laws were struck down capriciously by the courts. Anyone who opposes core New Deal juridprudence is too radical to be allowed on the courts.

Posted by Nathan at September 18, 2002 12:26 PM

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